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Sunshine Week: Missing Documents on NSA Surveillance

As part of EFF's celebration of Sunshine Week, we're providing a list of missing documents related to the National Security Agency’s warrantless wiretapping program. As a result of various Freedom of Information Act lawsuits and Congressional investigations, the government has provided information about the existence of various memoranda and other documents that are responsive to requests for information about the NSA Program. News media reports and books have revealed the existence of additional documents. We’ve combed through a wide variety of sources, and created a list of known NSA surveillance documents that have yet to see the sunshine. To provide some context, we have also included a few released documents in the list.

We hope that President Obama's committment to transparency and accountability means that we will soon find the truth behind these documents. In the mean time, the list of missing documents provide information about the general subject, the timing and/or the participants to the communication, which is sufficient information to begin analysis of the potential content of the memos based on known information available from other sources. For the remainder of Sunshine Week, we will be writing a series of blog posts, highlighting particular missing documents, and providing the context that surrounds the document.

Today, we start with an October 20, 2001 memo known as FBI 7. According to a declaration filed by Deputy Assistant Attorney General Steven Bradbury:

FBI 7 is a one-page memorandum, dated October 20, 2001, from the Attorney General to the Director of the FBI, advising the Director that certain intelligence collection activities are legal and have been appropriately authorized.

When this memo was written, John Ashcroft was the Attorney General and Robert Mueller was the FBI Director (on the job since September 4, 2001).

After John Yoo completed the legal analysis purportedly supporting warrantless wiretapping on October 4, 2001, the Program went operational on October 6. See Summary of Evidence, filed in the NSA surveillance litigation (p. 6); May 18, 2006 Gen. Hayden Confirmation Hearing (p. 62).

The Program did not stay secret for long. Eric Lichtblau reported in Bush’s Law that “[w]ithin twelve hours of its inception … the program’s cover was blown. It happened at the FBI [where a] technician stumbled on to … an NSA operation. More troubling still, there was no court order to be found.” Eric Lichtblau, Bush’s Law (p. 137).

Worried about the legality, the FBI ran the issue of the warrantless operation up the chain of command until it landed “finally at the desk of the FBI director. … It’s okay, Director Mueller told [Deputy Director] Pickard. The NSA operation had been approved at the highest level; everything was in order.” Eric Lichtblau, Bush’s Law (p. 138).

After the warrantless wiretapping story broke, the New York Times reported that the FBI was uncomfortable about the leads generated by the NSA program:

As the bureau was running down those leads [in 2001], its director, Robert S. Mueller III, raised concerns about the legal rationale for a program of eavesdropping without warrants, one government official said. Mr. Mueller asked senior administration officials about 'whether the program had a proper legal foundation,' but deferred to Justice Department legal opinions, the official said.

FBI 7 is only a one-page document. Given how much space is generally devoted on government memos to the header and the signature line, there is not much room for left any legal analysis. Instead, this appears to be a simple, conclusory note, asserting that the NSA Program was legal. Yet, two years later, Mueller and the top leadership of the DOJ were prepared to resign over the illegality of the Program. Summary of Evidence (pp. 41-46). This document is a significant document in the history of the illegal warrantless wiretapping program and we urge the Obama Administration to release it.